UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GLORIA DEAN; EUNICE ALDRIDGE;
RICHARD F. ALDRIDGE; PHYLLIS
STEWART; CHARLES STEWART;
DOROTHY COOK; DWIGHT COOK;
SHARENA DEIHL; CAROLYN SUE
DELANEY; DEBRA DOVE; JAMES DOVE;
CAROLYN DURST; JO ANN KILLMON;
CHARLES KILLMON; DEBORAH
REDMAN; LESTER REDMAN; CAROLYN
RIDENOUR; IRVIN RIDENOUR; MELISSA
ROBIN; ROSE WOLF,
Plaintiffs-Appellees,
and
JOHN & JANE DOE, 1-500, State of
West Virginia; JOHN & JANE DOE, No. 01-1506
501-550, State of West Virginia,
Plaintiffs,
v.
PILGRIM’S PRIDE CORPORATION,
Defendant-Appellant,
and
GILMER INDUSTRIES, INCORPORATED, a
Virginia corporation; ROLLINGER
ENTERPRISES, INCORPORATED, a
Virginia corporation; ESIS LOSS
CONTROL SERVICES, INCORPORATED,
Defendants.
2 DEAN v. PILGRIM’S PRIDE CORP.
GLORIA DEAN; EUNICE ALDRIDGE;
RICHARD F. ALDRIDGE; PHYLLIS
STEWART; CHARLES STEWART;
DOROTHY COOK; DWIGHT COOK;
SHARENA DEIHL; CAROLYN SUE
DELANEY; DEBRA DOVE; JAMES DOVE;
CAROLYN DURST; JO ANN KILLMON;
CHARLES KILLMON; DEBORAH
REDMAN; LESTER REDMAN; CAROLYN
RIDENOUR; IRVIN RIDENOUR; MELISSA
ROBIN; ROSE WOLF,
Plaintiffs-Appellees,
and
JOHN & JANE DOE, 1-500, State of
West Virginia; JOHN & JANE DOE, No. 01-1514
501-550, State of West Virginia,
Plaintiffs,
v.
GILMER INDUSTRIES, INCORPORATED, a
Virginia corporation,
Defendant-Appellant,
and
PILGRIM’S PRIDE CORPORATION;
ROLLINGER ENTERPRISES,
INCORPORATED, a Virginia
corporation; ESIS LOSS CONTROL
SERVICES, INCORPORATED,
Defendants.
DEAN v. PILGRIM’S PRIDE CORP. 3
GLORIA DEAN; EUNICE ALDRIDGE;
RICHARD F. ALDRIDGE; PHYLLIS
STEWART; CHARLES STEWART;
DOROTHY COOK; DWIGHT COOK;
SHARENA DEIHL; CAROLYN SUE
DELANEY; DEBRA DOVE; JAMES DOVE;
CAROLYN DURST; JO ANN KILLMON;
CHARLES KILLMON; DEBORAH
REDMAN; LESTER REDMAN; CAROLYN
RIDENOUR; IRVIN RIDENOUR; MELISSA
ROBIN; ROSE WOLF,
Plaintiffs-Appellees,
and
JOHN & JANE DOE, 1-500, State of
West Virginia; JOHN & JANE DOE, No. 01-1515
501-550, State of West Virginia,
Plaintiffs,
v.
ESIS LOSS CONTROL SERVICES,
INCORPORATED,
Defendant-Appellant,
and
PILGRIM’S PRIDE CORPORATION;
GILMER INDUSTRIES, INCORPORATED, a
Virginia corporation; ROLLINGER
ENTERPRISES, INCORPORATED, a
Virginia corporation,
Defendants.
Appeals from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CA-99-93-3)
4 DEAN v. PILGRIM’S PRIDE CORP.
Argued: December 5, 2001
Decided: December 19, 2001
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Kevin M. Rose, WHARTON, ALDHIZER & WEAVER,
P.L.C., Harrisonburg, Virginia, for Appellants. Michael Gene Hoehn,
Falls Church, Virginia, for Appellees. ON BRIEF: Glenn M. Hodge,
WHARTON, ALDHIZER & WEAVER, P.L.C., Harrisonburg, Vir-
ginia, for Appellant Pilgrim’s Pride; Gary A. Kalbaugh, Jr., James H.
Revere, III, KALBAUGH, PFUND & MESSERSMITH, P.C., Rich-
mond, Virginia, for Appellant Gilmer Industries; Melissa W. Robin-
son, Victor S. Skaff, Monica L. Taylor, GENTRY, LOCKE, RAKES
& MOORE, L.L.P., Roanoke, Virginia, for Appellant ESIS.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Pilgrim’s Pride Corporation of Virginia, Gilmer Industries, Incor-
porated, and ESIS, Incorporated (collectively "the companies"),
appeal from an order dismissing a toxic-tort action against them. They
argue that the district court abused its discretion when it refused to
require the plaintiffs to refile only in Virginia. Finding no abuse of
discretion, we affirm.
DEAN v. PILGRIM’S PRIDE CORP. 5
I.
On October 27, 1999, five plaintiffs, not purporting to represent a
class, filed a toxic-tort action against the companies and one other
defendant in the Western District of Virginia, claiming that chemicals
in the air at a chicken-processing plant in West Virginia had injured
them. Over the next nine months, fifteen more named plaintiffs joined
the suit, and the district court dismissed accompanying claims, filed
in the names of fictitious plaintiffs, for lack of standing. The parties
conducted some discovery, but took no depositions.
On August 11, 2000, three days before the deadline for disclosure
of their expert witnesses, the plaintiffs moved for voluntary dismissal
under Federal Rule of Civil Procedure 41(a)(2). In relevant part, the
rule provides that "an action shall not be dismissed at the plaintiff’s
instance save upon order of the court and upon such terms and condi-
tions as the court deems proper. . . . Unless otherwise specified in the
order, a dismissal under this paragraph is without prejudice." Fed. R.
Civ. P. 41(a)(2). The plaintiffs explained that they needed time for
additional investigation because new plaintiffs had recently joined the
case, and that their counsel needed more time to find co-counsel.
After a magistrate judge recommended dismissal without prejudice
on a number of conditions, the district court granted it, imposing only
two of the recommended conditions: discovery in the dismissed
action would be used in any future actions, and the plaintiffs would
be liable to two defendants for up to $2000 in attorney fees, if they
lost a refiled action pursuant to Federal Rules of Civil Procedure 12
or 56. The court noted the relatively early stage of the litigation, and
particularly the absence of any pending motions for summary judg-
ment, accepted plaintiffs’ good faith, citing their reasons for dismissal
other than evasion of an adverse ruling or simple neglect, and noted
that the companies would be able to use the discovery already con-
ducted in any future case. Accordingly, the court refused to require
the plaintiffs to refile only in Virginia.
II.
The companies contend that the district court abused its discretion
under Rule 41(a)(2) by refusing the requested condition. They argue
6 DEAN v. PILGRIM’S PRIDE CORP.
that they were prejudiced by loss of both a valid limitations defense,
under Virginia law, and a tactical advantage, the fast approaching
deadline for disclosure of expert witnesses. Having had the benefit of
oral argument and of the parties’ briefs, we conclude that the district
court did not abuse its discretion in deciding the issue before it. See
Metropolitan Federal Bank of Iowa v. W.R. Grace Company, 999
F.2d 1257, 1263 (8th Cir. 1993); McCants v. Ford Motor Co., 781
F.2d 855, 858-59 (11th Cir. 1986). Accordingly, we affirm on the rea-
soning of the district court.
AFFIRMED